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Section 18C and the Implied Freedom of Political Communication

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SECTION 18C AND THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION * LARISSA WELMANS This article examines whether Racial Discrimination Act 1975 (Cth) s18C is constitutionally invalid, wholly or in part, by virtue of the implied freedom of political communication. It analyses s18C’s constitutional validity at the burden, compatibility and balancing stages of the recently affirmed McCloy test. In doing so, it aims to highlight aspects of these stages which are uncertain of application, or the subject of divergent High Court authority, and where possible offer acceptable resolutions. Ultimately, this paper concludes that s18C is capable of withstanding a High Court constitutional challenge, meanwhile acknowledging that such a finding may be premised on departure from prevailing Federal Court authority on certain aspects of s18C’s operation. I INTRODUCTION Given the existence of a structural implication of freedom of political communication (‘implied freedom’), in the Commonwealth Constitution (‘Constitution’),1 an important question arises: will section 18C (‘s18C’) of the Racial Discrimination Act 1975 (Cth) (‘RDA’) withstand a constitutional challenge from this implied freedom?2 An affirmative answer is likely. Within this context, s18C’s constitutional validity will be analysed from narrative, normative and critical perspectives, by synthesising and applying the test enunciated by the McCloy plurality judgment (‘McCloy test’), as revised in Brown v Tasmania (‘Brown’).3 In doing so, the focus is on the burden, compatibility and * Student at the University of Western Australia. This article is based on my Advanced Legal Research paper submitted in partial fulfilment of the Juris Doctor degree. Thank you to Jim Thomson for his generous supervision. * Student at the University of Western Australia. This article is based on my Advanced Legal Research paper submitted in partial fulfilment of the Juris Doctor degree. Thank you to Jim Thomson for his generous supervision. 1 For the contrary position, see: Australian Capital Television v Commonwealth (1992) 177 CLR 106, 187-9, 227, 230-3 (Dawson J). 2 Section 18C has come before the High Court on two occasions. In Hagan v Trustees of the Toowoomba Sports Ground Trust [2002] HCA Trans 132 (19 March 2002) and Transcript of Proceedings the constitutional issue was not pursued in the High Court. In Bropho v Human Rights and Equal Opportunity Commission [2005] HCA Trans 9 (4 February 2005) special leave was refused by the majority. 3 McCloy v New South Wales (2015) 257 CLR 178, 194-5 [2] (French CJ, Kiefel, Bell and Keane JJ); Brown v Tasmania (2017) 349 ALR 398, 34-5 [104]-[105] (Kiefel CJ, Bell and Keane JJ), 83 [279] (Nettle J). It should be noted that the individual judgments in that case did not adopt this approach. See: McCloy v New South Wales (2015) 257 CLR 178, 235 [142], 238 [152] (Gageler J), 259 [221] (Nettle J), 287-8 [336]-[339] (Gordon J). Similarly, in Brown v Tasmania (2017) 349 ALR 22 University of Western Australia Law Review Vol 44(1):1 balancing stages of this test 4 because they contribute most significantly to formulating relevant doctrinal and principled arguments to support and justify an answer to s18C’s constitutional validity questions.5 This article seeks to identify and analyse critical issues relevant to s18C’s constitutional validity at these stages, taking two main focuses. First, exposing areas of uncertainty in High Court approaches to applying the burden, compatibility and balancing tests. Second, pinpointing where, and to what extent, the implied freedom may dictate an operation of s18C dissimilar to prevailing Federal Court authority. Part I outlines the background to the implied freedom and Part IIA of the RDA’s terms and operation, within which s18C sits. Part II considers whether s18C burdens the implied freedom and the extent of that burden. It identifies divergent High Court authority on whether laws regulating offensive and insulting communication burden the implied freedom,6 concluding that they do. It also measures the breadth of s18C’s elements, outlining their scope and interpretation as articulated by the Federal Court. Part III tests the compatibility of s18C’s purpose. It reveals conflicting narrow and broad judicial approaches to determining an impugned law’s purpose,7 finding s18C’s purpose compatible on either approach, while concluding the broad is preferable. Part IV considers whether s18C is adequate in its balance. This Part suggests that balancing the importance of s18C’s purpose would outweigh its burden. In doing so, it explores the extent to which the High Court might depart from High Court authority in undertaking a balancing inquiry. However, this Part ultimately argues that s18C’s overall effect is to enhance rather than burden the implied freedom. It 398, Gageler and Gordon JJ did not express support for the McCloy approach. Also, note recent observations in: Murphy v Electoral Commissioner (2016) 90 ALJR 1027, 1038-9 [37]-[39] (French CJ and Bell J), 39 [101]-[102] (Gageler J), 63-4 [202]-[205], 95-6 [296] (Keane J), 96-7 [297]-[305] (Gordon J); Chief of the Defence Force v Gaynor (2017) 246 FCR 298, 319 [92] (Perram, Mortimer and Gleeson JJ). 4 McCloy v New South Wales (2015) 257 CLR 178, 194-5 [2] (French CJ, Kiefel, Bell and Keane JJ). 5 In s18C’s case, suitability and necessity testing are straightforward and relatively uncontroversial. See for example: Joshua Forrester, Lorraine Finlay and Augusto Zimmerman, No offence intended: Why 18C is wrong (Connor Court, 2016) 203-6; Cameron Barnes, Debating sensitive racial issues in Australia: achieving a legitimate balance between free speech and the elimination of racial discrimination (Honours Thesis, University of Western Australia, 2015) 27-9. 6 Coleman v Power (2004) 220 CLR 1, 113-4 [299] (Callinan J), 124 [330] (Heydon J), 136 [85] (Hayne J); Monis v The Queen (2013) 249 CLR 92, 131 [67] (French CJ). 7 Coleman v Power (2004) 220 CLR 1, 98-9 [256] (Kirby J), 121-2 [323]-[324] (Heydon J); Monis v The Queen (2013) 249 CLR 92, 133-4 [73] (French CJ), 147 [125], 162 [178], 163 [184] (Hayne J), 205 [317] (Crennan, Kiefel and Bell JJ); Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1, 43 [66] (French CJ), 64-5 [141] (Heydon J), 90 [221] (Crennan and Kiefel JJ). 23 University of Western Australia Law Review Vol 44(1):1 acknowledges uncertainty surrounding how a balancing test should be performed in such circumstances, finally concluding that none is necessary. This article demonstrates that in the event of a High Court challenge, s18C will not be wholly constitutionally invalidated. II PROVIDING LEGAL CONTEXT A The Implied Freedom and McCloy v New South Wales In Australia, a constitutional implication operates to limit Commonwealth and State legislative power in the area of political communication.8 This implied freedom’s existence was first recognised in two twin cases in the 1990s9 and subsequently unanimously confirmed in Lange v Australian Broadcasting Company10 (‘Lange’) as an indispensable incident of the system of representative government derived from the Constitution’s11 text and structure.12 Lange’s first limb tested an impugned law’s legitimacy by virtue of its compatibility with the maintenance of the constitutionally prescribed system of representative government.13 Lange’s second limb considered whether an impugned law’s means were reasonably appropriate and adapted to achieving its legitimate purpose.14 Traditionally, this second enquiry involved proportionality analysis solely of the relationship between an impugned law’s means and purpose.15 However, in 2015, a High Court majority in McCloy v New South Wales16 (‘McCloy’) adopted a 8 Monis v The Queen (2013) 249 CLR 92, 112 [19] (French CJ); Cunliffe v Commonwealth (1994) 182 CLR 272 (Brennan J); McCloy v New South Wales (2015) 257 CLR 178, 203 [30] (French CJ, Kiefel, Bell and Keane JJ); Brown v Tasmania (2017) 349 ALR 398, 2 [6] (Kiefel CJ, Bell and Keane JJ). See further: Bryn Dodson, Dirty Politics: Offensiveness and the Implied Freedom of Political Communication (Honours thesis, University of Western Australia, 2006) 3; Zoe Robinson, ‘A Comparative Analysis of the Doctrinal Consequences of Interpretive Disagreement for Implied Constitutional Rights’ (2010) 11 Washington University Global Studies Law Review 93, 98. 9 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 and Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. See further: Nicholas Aroney et al, The Constitution of the Commonwealth of Australia (Cambridge University Press, 2015) 357-9. 10 (1997) 189 CLR 520. 11 Australian Constitution ss 7, 24, 128. 12 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 558-9, 566-7 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ). See further: Dodson, above n 8, 4; James Stellios, ‘Using Federalism to Protect Political Communication: Implications from Federal Representative Government’ (2007) 31 Melbourne University Law Review 239, 243; Dan Meagher, ‘What is ‘Political Communication’? The Rationale and Scope of the Implied Freedom of Political Communication’ (2004) 28(2) Melbourne Law Review 438, 445. 13 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 561-2, 567 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ). 14 Ibid 562 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ). 15 Monis v The Queen (2013) 249 CLR 92, 151 [138] (Hayne J). 16 (2015) 257 CLR 178. 24 University of Western
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